1. Whether a person's due process rights have been violated is a question of law.
Consequently, an appellate court's review is unlimited.

2. The Due Process Clause of the Fourteenth amendment to the United States Constitution
protects the fundamental right of a parent to make decisions concerning the care, custody,
and control of his or her children.

3. K.S.A. 38-129 states that a trial court may grant the grandparents of an unmarried minor
child reasonable visitation rights to the child during the child's minority upon a finding
that the visitation rights would be in the child's best interests and when a substantial
relationship between the child and the grandparent has been established.

4. Before a trial court may grant grandparent visitation, K.S.A. 38-129 requires two
conditions: (1) that a substantial relationship must exist between the child and the
grandparent and (2) that the visitation will be in the best interests of the child. The burden
of proof is on the grandparent to show that visitation is in the best interests of the child
and that a substantial relationship exists between the child and the grandparent.

5. Because a fundamental presumption exists that a fit parent will act in the best interests of
his or her child, a constitutional application of K.S.A. 38-129 requires the trial court to
give special weight to a fit parent's position regarding grandparent visitation.
Nevertheless, a parent's determination of what is in the child's best interests is not always
absolute; otherwise the parent could arbitrarily deny a grandparent visitation without the
grandparent having any recourse.

6. Although a trial court must consider the fitness of a parent when making a determination
on grandparent visitation, the court is not required to find parental unfitness before
allowing grandparent visitation under K.S.A. 38-129(a).

7. Absent findings of unreasonableness, a trial court should adopt the grandparent visitation
plan proposed by a fit parent.

GREEN, J.: Jarred Creach and Rayna Creach, natural parents of Jayden Creach and
Collin Creach, appeal from the trial court's judgment granting the parental grandmother, Linda
Mason Reynolds, visitation with their minor children. Jarred and Rayna argue that the trial court
unconstitutionally granted Reynolds grandparent visitation with their children by failing to
comply with the requirements of Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49,
120 S. Ct.
2054 (2000). We determine that it is unclear whether the trial court used the Troxel
presumption,
and if it did, whether it gave deference to Jarred and Rayna's opinion on grandparent visitation.
As a result, we reverse and remand to the trial court to apply the Troxel presumption
that fit
parents act in the best interests of their children and that their opinion on grandparent visitation
should be given special weight. Moreover, the trial court shall explain whether it would have
imposed the same grandparent visitation had it applied the Troxel presumption. If it
would have
not made the same visitation order, the trial court shall establish a new visitation order.

In June 2004, Jarred told Reynolds that he did not want her having any contact with his
children. On March 31, 2006, Reynolds asked the trial court for grandparent visitation with
Jayden, born on December 24, 1998, and Collin, born on September 19, 2003. Reynolds
requested visitation with her grandchildren 1 weekend per month from Friday at 6 p.m. to
Sunday at 6 p.m., 2 days during the Thanksgiving holiday, 3 days during the Christmas holiday,
and 2 continuous weeks over the summer. The trial court conducted a hearing on Reynolds'
petition.

The evidence regarding Reynolds' contact with her grandchildren after June 2004 was
undisputed. Since June 2004, Reynolds had only seen her grandchildren twice. In one instance,
the children and Reynolds attended a birthday party for Charlotte Mason, the children's paternal
great-grandmother. In the second instance, Reynolds visited Mason when the children were at
Mason's home.

The evidence regarding Reynolds' contact with her grandchildren before June 2004,
however, was disputed. Jarred and Rayna testified that Reynolds had significant contact with
Jayden but not Collin. According to Jarred, Reynolds saw Jayden 1 or 2 times a week while she
lived in Wichita for 2 years, and the two had developed a grandparent and grandchild
relationship. Reynolds testified that she lived in Wichita from 2000 to 2004 and saw Jayden once
or twice a week and that he stayed the night dozens of times during this time period. Jarred
testified that after Christmas 2003, Reynolds only saw the children once every 2 or 3 months.
Rayna testified that Reynolds visited Collin 1 or 2 times a week until visitation was terminated
when Collin was approximately 9 months old. According to Rayna, Collin never spent the night
with Reynolds and does not know who she is.

All the parties agreed that Jarred's termination of Reynolds' right to visit her
grandchildren was the result of an incident that occurred between Reynolds and Jarred on June
21, 2004. The parties, however, disagree about the facts underlying the incident. On this date,
Reynolds gave Jarred a haircut on Mason's front porch. Afterwards, Jarred sat on his motorcycle,
which was parked a few feet away from the porch. In the process of sweeping the hair off of the
porch, Reynolds swept some of the hair, along with dust and rocks, onto Jarred's motorcycle.
Jarred testified that he yelled at his mother to stop and "called her several things." Reynolds
testified that Jarred called her a "stupid whore cunt." Reynolds further testified, "I stood there and
looked at him a couple of seconds and then I deliberately swept it." According to Reynolds,
Jarred began to walk towards her with his arms back and his chest stuck out, making contact with
her and causing her to fall onto a porch swing. Jarred, however, maintained that he only walked
towards Reynolds and that she tripped without him touching her. As a result of this incident,
Jarred was convicted of domestic violence after a trial in municipal court.

After the June 2004 incident, Jarred terminated any contact between his family and
Reynolds. At the hearing, both Jarred and Rayna stated that they did not want their children
having contact with Reynolds. Jarred testified that he did not want his children and Reynolds to
have a relationship because Reynolds had caused "significant problems" for his family. Jarred
also maintained that he did not agree with Reynolds' values and that he was concerned she would
physically discipline his children. Both Jarred and Rayna did not want the children riding in a car
with Reynolds because she suffered from seizures or blackouts. Jarred testified that the problem
between him and Reynolds could be resolved if Reynolds told the truth about the June 2004
incident.

Reynolds contacted Jarred four times after the June 2004 incident to try to resolve their
problems and resume contact with her grandchildren. Reynolds asserted that Jarred refused to
allow her to see Jayden and Collin unless she had the domestic abuse conviction expunged from
his record. Reynolds admitted that in 1985 she was diagnosed with temporal lobe seizures but
maintained that she had not had a seizure in 20 years. Reynolds further testified that she had
never physically disciplined Jayden or Collin.

At the end of the hearing, Jarred and Rayna's attorney told the trial court that when
making its decision on grandparent visitation, it needed to consider the parents' due process right
to raise their children. Although Jarred and Rayna opposed any grandparent visitation, they
offered an alternative visitation plan that they believed was more reasonable than Reynolds'
proposed plan.

The trial court concluded that a substantial relationship existed between Reynolds and her
grandchildren and that it would be in the children's best interest to have contact with Reynolds.
The court expressed concern that Jarred was "using the grandchildren . . . as a tool to get back at
his mother." The court further stated, "I really haven't heard any good motives from any of the
evidence as to why visitation was cut off to begin with." The trial court granted Reynolds' request
for visitation with her grandchildren. For the first 2 months of visitation, the trial court ordered
one 8-hour day visit per month to be supervised by Rayna. The court stated that after the first 2
months of the visitation period, Reynolds' visitation with her grandchildren would be 2 weekend
days per month, 2 days during the Thanksgiving holiday, 3 days during the Christmas holiday,
and 2 continuous weeks during the month of July.

Did the Trial Court Unconstitutionally Apply K.S.A. 38-129?

Jarred and Rayna argue that the trial court unconstitutionally granted Reynolds
grandparent visitation with their children by failing to comply with the requirements of
Troxel v.
Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). Jarred and Rayna make
three
specific allegations: (1) that the trial court erred in not making a finding as to their parental
fitness; (2) that the trial court erred in not making a finding regarding the reasonableness of their
opinion on grandparent visitation; and (3) that the trial court erred in not giving special weight to
their position on grandparent visitation. Jarred and Rayna ask this court to make the necessary
findings and enter an order of grandparent visitation rather than remand the case to the trial court.

Reynolds acknowledges that the trial court did not make a specific finding as to Jarred
and Rayna's parental fitness. Reynolds argues that she never alleged to the trial court that Jarred
and Rayna were unfit parents. Additionally, she argues that Kansas case law does not require a
trial court to make a specific finding of parental fitness when ordering grandparent visitation.
Reynolds also acknowledges that the trial court did not make specific findings regarding the
special weight it gave to Jarred and Rayna's opinions on grandparent visitation. Reynolds,
however, argues that the record indicates that the court did consider the parents' opinions and
found their opinions unreasonable.

Although both parties set out a substantial evidence standard of review in their briefs, the
question posed by Jarred and Rayna implicates a question of law: Was their fundamental due
process right to make decisions concerning the care, custody, and control of their children
violated by the trial court's application of K.S.A. 38-129? Whether a party's due process rights
were violated is a question of law, which this court reviews de novo. Hemphill v. Kansas
Dept. of
Revenue, 270 Kan. 83, 89, 11 P.3d 1165 (2000).

The United States Supreme Court issued its landmark opinion on grandparent visitation
in Troxel. The legal basis for the Supreme Court's decision in Troxel is
that "the Due Process
Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children." 530 U.S. at 66. In
Troxel, following
the death of their son, the paternal grandparents sought increased visitation with their
grandchildren under a Washington visitation statute permitting courts to grant visitation rights to
any person at any time when it would serve the child's best interests. The grandparents sought 2
weekends per month and 2 weeks each summer. The mother, however, wished to limit the
grandparent's visitation to 1 day per month. The Washington Supreme Court found that the
statute unconstitutionally interfered with the fundamental right of parents to rear their children.
On appeal, the United States Supreme Court affirmed, finding the statute unconstitutionally
infringed on the mother's fundamental right to make decisions concerning the care, custody, and
control of her children. 530 U.S. at 60-63.

The United States Supreme Court identified a combination of factors that supported its
decision. First, the Court stated that the trial court had directly contravened the traditional
presumption that a fit parent will act in the best interest of his or her child by presuming that the
grandparents' request should be granted in the absence of proof that it would not be in the
children's best interest. The United States Supreme Court observed that a fit parent's decision
must be accorded "at least some special weight." 530 U.S. at 70. Next, the Court noted that the
trial court had failed to give any consideration to the mother's proposed visitation schedule.
Finally, the Court pointed out that the trial court's reasons for granting visitation were
insubstantial. 530 U.S. at 68-72.

K.S.A. 38-129 governs grandparent visitation and succinctly states:

"(a) The district court may grant the grandparents of an unmarried minor child
reasonable
visitation rights to the child during the child's minority upon a finding that the visitation rights
would be in the child's best interests and when a substantial relationship between the child and
the
grandparent has been established."

Before a trial court may grant grandparent visitation, K.S.A. 38-129 requires two conditions:
that
a substantial relationship must exist between the child and the grandparent and that the visitation
will be in the best interests of the child. The burden of proof is on the grandparent to show that
visitation is in the best interests of the child and that a substantial relationship exists between the
child and the grandparent. Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 653, 16
P.3d 962
(2001).

Relying on Troxel, our Supreme Court found that K.S.A. 38-129 is not
unconstitutional
on its face. Kansas Dept. of SRS v. Paillet, 270 Kan. at 660. The Paillet
court interpreted Troxel
as requiring a court to presume that a fit parent will act in the best interests of his or her
child and
requiring a court to give a fit parent's decision regarding grandparent visitation special weight.
270 Kan. at 655-56. In Paillet, the court found that K.S.A. 38-129 was
unconstitutionally applied
in that case because the trial court's order failed to indicate that it had considered the fitness of
the parent or that the parent's decision had been given special weight. 270 Kan. at 657-60. Simply
put, "[a] constitutional application of K.S.A. 38-129 requires the trial court to give material
weight and deference to the position of a fit parent. [Citation omitted.]" In re T.A.,
30 Kan. App.
2d 30, 35, 38 P.3d 140 (2001).

Jarred and Rayna argue that the trial court erred because it did not find them to be unfit
parents. Although a court must consider the fitness of a parent when making a determination on
grandparent visitation, the court is not required to find parental unfitness before allowing
grandparent visitation under K.S.A. 38-129(a). DeGraeve v. Holm, 30 Kan. App. 2d
865, 867, 50
P.3d 509 (2002). Still, in her brief, Reynolds acknowledges that she never alleged to the trial
court that Jarred and Rayna were unfit parents. Moreover, at the hearing, Reynolds' attorney told
Rayna, "My client says you're a really, really, really good mother . . . ." Assuming Jarred and
Rayna are fit parents, there is the fundamental presumption from Troxel that they
will act in the
best interests of their children. Nevertheless, "a parent's determination of what is in the child's
best interests is not always absolute; otherwise the parent could arbitrarily deny grandparent
visitation without the grandparents having any recourse. [Citation omitted.]" 30 Kan. App. 2d at
867.

Additionally, this court has held that trial courts do not have to give absolute deference to
a decision by two fit parents of a nuclear family who have jointly decided to deny a grandparent
visitation with their children. Davis v. Heath, 35 Kan. App. 2d 86, 92, 128 P.3d 434
(2006). The
Davis court affirmed the trial court's order of grandparent visitation, but only after it
pointed out
that the trial court had correctly recognized the presumption that fit parents act in the best
interests of their children and that their opinion on grandparent visitation should be given special
weight. 35 Kan. App. 2d at 93.

The record in this case does not show that the trial court gave Jarred and Rayna's opinions
on grandparent visitation any special weight. The trial court seemed to merely find that the
parents' initial decision to cut off visitation was unreasonable:

"You know, it appears to the court that Dad got upset over this incident. He didn't
like
being arrested and convicted. And he's using the grandchildren now as a tool to get back at his
mother which certainly the court would not approve of. I really haven't heard any good motives
from any of the evidence as to why visitation was cut off to begin with. Under the circumstances,
I'll go ahead and approve the requested visitation."

Although Jarred and Rayna did not want Reynolds to have any visitation with their
children, they also expressed concern to the trial court about the reasonableness of Reynolds'
proposed visitation plan. At the conclusion of the hearing, Jarred and Rayna's attorney provided a
proposed visitation plan:

"[T]he requested visitation is like one weekend short of what we grant a noncustodial
parent.
My–My clients, you know, if the court feels that some visitation must happen, they would
request
that the visitation be supervised by Rayna because at this point Collin doesn't even know Linda.
They certainly request there be no overnight visitation. They would request–If the court
feels that
it should be ordered, they would request Sunday from 1:00 to 4:00 once a month supervised
visitation. Nothing in the summer. The holidays are, you know, few and far between. That's for
the parents. And there's other relatives these children need to see too."

Despite the parents' expressed concerns about visits over the holidays and visits lasting an
entire weekend, the trial court did not give special weight to these concerns. The court's only
apparent response to the parents' concerns was to order 8-hour monthly supervised visits for 2
months. Otherwise, the court granted grandmother's every visitation request without giving
deference to the parents' opinions. In fact, the trial court did not make any findings regarding the
reasonableness of the parents' proposed visitation plan. "Absent findings of unreasonableness, a
trial court should adopt the grandparent visitation plan proposed by a fit parent." In re
T.A., 30
Kan. App. 2d at 35.

Here, the trial court did not make sufficient findings to allow this court to determine why
the parents' proposed visitation plan was not adopted or why the grandmother's proposed
visitation plan was not revised to address the parents' concerns. Because it is unclear whether the
trial court applied the Troxel presumption, and if it did, whether it gave deference to
Jarred and
Rayna's opinions on grandparent visitation, it is impossible for this court to determine whether
the trial court unconstitutionally applied K.S.A. 38-129 by interfering with Jarred and Rayna's
due process right to parent their children.

Because this court does not weigh conflicting evidence or pass on the credibility of
witnesses, Jarred and Rayna's request that this court make the necessary findings under
Troxel
and enter a visitation order is clearly inappropriate. See State ex rel. Morrison v. Oshman
Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003). Therefore, we
reverse and
remand to the trial court to apply the Troxel presumption that fit parents act in the
best interests
of their children and that their opinions on grandparent visitation should be given special weight.
Moreover, the trial court shall explain whether it would have imposed the same grandparent
visitation had it clearly applied the Troxel presumption in this case. If it would have
not made the
same visitation order, the trial court shall establish a new visitation order.